European Trade Mark law provides that a Community Trademark may consist of any sign which can be represented graphically which has meant that marks which comprise sounds and smells have been assumed to be capable of registration if they can be represented graphically. The European Court of Justice in the case of Shield Mark, BV v. Joost Kist (case C-283/01) has now ruled that a mark consisting of a sound, noise or music is capable of registration as a trade mark so long as it is both capable of distinguishing one undertaking from another and also capable of being represented graphically. The Court was specifically asked the question as to what form the graphical representation should take. It partly avoided the issue by indicating that it would not deal with hypothetical questions and that the Court or tribunal before which any action was pending would have to reach its own conclusion based on the facts of the particular case, but some useful guidelines as to what would or would not be acceptable were provided.

While the Court would not rule out a description using the written language, a description such as a selection of musical notes or “the sound of a cock crow” would lack precision and clarity and would not be sufficient to define the scope of the protection sought. Similarly, onomatopoeia would be lacking in consistency because it could be pronounced differently by different speakers. What the Court considered would be acceptable for registration would be a stave divided into bars and showing particularly a clef, music notes and the rests in between the notes and, where appropriate, accidentals (i.e. sharp, flat, natural), which is to say complete musical notation determining the pitch and duration of sounds. This was felt to be clear, precise, self-contained and intelligible and of a durable and objective nature even if one would have to have an ability to read music and reproduce the sound.